Tuesday, May 29, 2007

Suicide

Maybe you saw the recent stories about the British police’s deciding not to pursue criminal charges against people who were in a chatroom with Kevin Whitrick when he committed suicide.

Maybe you also saw the earlier stories, the ones that came out in March just after Whitrick killed himself.

Those stories said the British police were looking into whether people in the chatroom could be charged, on the premise that they encouraged Whitrick to kill himself. . . . after he hanged himself before a live webcam.

At the time, he was logged into an “insult” chatroom where people “`have a go at each other.’” Reports were that after Whitrick tied a rope thrown over a ceiling joist around his neck and stood on a chair, apparently having announced his intention to kill himself, some people were posting comments such as “`”F***ing do it, get on with it, get it round your neck. For F***'s sake he can't even do this properly'”.’" It seems, though, that at least some of the people who were observing all this did not realize he was really serious, because news reports also say they were horrified when he actually hanged himself.

I’m perfectly willing to believe that, however incredible it seems given that the man was standing on a chair with a rope around his neck, these people didn’t realize he was really serious about committing suicide. I’m also willing to believe that they never intended to encourage him to do so.

But I don’t want to write about whether the people in that chatroom last March knew they were, at least in principle, encouraging someone to commit suicide. I want to talk about whether ANY type of online conduct could expose someone to criminal liability for another’s suicide.

Let’s start with what some claimed happened in the Whitrick case: people in a chatroom with the person (John Doe) who has announced he’s going to kill himself who encourage him to go ahead and do it. Let’s assume we have chat logs and all kinds of evidence that makes it clear at least some of the people in the chatroom deliberately encouraged Doe to kill himself . . . and he did.

Okay, the prosecution can prove beyond any reasonable doubt that these people encouraged Doe to commit suicide. So what?

In the U.S., anyway, there are only two suicide-related crimes: causing someone to commit suicide and assisting someone with committing suicide. Let’s see if either could apply to the Doe case.

The American Law Institute’s Model Penal Code (which, as I’ve mentioned, has been a very influential template for criminal law in the U.S.) has a provision which says that “[a] person may be convicted of criminal homicide for causing another to commit suicide only if he purposely causes such suicide by force, duress or deception.” Model Penal Code section 210.5(1). The drafters of the MPC added this provision because they said causing someone to commit suicide would be a “pretty clever way” to commit murder, and so it would.

Let’s assume, then, that one of the people in the chatroom (X) when Doe killed himself was having an affair with Doe’s wife and wanted Doe out of the picture. So X wants to cause Doe to commit suicide, and consequently does everything he can to encourage him to do so. Could we prosecute X for “causing” Doe’s suicide?

Probably not. First, he didn’t use force – he didn’t put a gun to Doe’s head and say “kill yourself”. I know that sounds idiotic, but there aren’t any real “causing” suicide cases.

The reason they put “force” in there is that about 80 years ago in Indiana, a really nasty fellow, who was quite powerful in the state, politically, kidnapped a woman, took her on a train to Chicago and told her he wanted to marry her. Problem is that he was drunk out of his mind during the train ride and, in attempting to rape her, bruised, bit and seriously mutilated her, so much so she had trouble walking when they got to Chicago.

While she was being kept prisoner in a hotel there, she was allowed to go to a drugstore, under the supervision of one of the jerk’s henchmen, to buy some makeup. She bought poison (yes, it was easy to do that eighty years ago) and took it, intending to kill herself because of what he was doing and had done to her (the pain was apparently terrible). She took too much poison, which made her throw much of it up, so it didn’t kill her immediately. She died several months later, having been taken home after he found out what she’d tried to do, apparently of infection caused by the bites he had inflicted (this was before antibiotics were available) combined with the damage to her liver caused by the poison.

The drafters of the MPC were thinking of this kind of the use of force in their causing suicide provision but, since we don’t have that in my hypothetical, this isn’t an option for going after X. (The fellow who did all this to Madge, the woman I just talked about? He was prosecuted for murder and convicted, spent about 40 years in prison. And no, he really should not have been convicted of murder, since there was no evidence he ever intended to kill her, but the citizens of Indiana were too outraged to care much.)

Duress won’t work because X didn’t point a gun at Doe’s son, Fred, and say, “kill yourself or Fred’s a goner.” Deception probably won’t work either because X was perfectly straightforward in encouraging Doe to kill himself. He may not have identified himself, and his motives, but there was not the kind of deception the drafters of the MPC were going at here. X didn’t tell Doe he had an incurable, godawfully painful disease that would kill him but only after prolonged, excruciating suffering, for example.

But the biggest problem, the probably insurmountable problem, is: How can you say X “caused” Doe to kill himself? The decision to take one’s life is always ultimately up to that person. I can see where force and duress, even deception, can alter circumstances so that while the ultimate decision is up to the person who kills himself, we can justifiably say the perpetrator’s conduct overrode their free will. In my hypothetical (as in the British case and the few similar online suicide cases I’m aware of), we just do not have enough to say that anyone in the chatroom caused Doe’s suicide.

What about assisting suicide? Suicide is not a crime in the U.S. It used to be (just as it used to be in Britain where, centuries ago, they buried suicides at a crossroads with a stake through their hear), but lawmakers finally figured out that criminalizing it just makes no sense at all. If someone succeeds, there’s no one to prosecute; if they fail, you can prosecute them for attempting suicide (and that used to be done), but that’s really a terrible way to approach the problem.

So suicide is not a crime, which means it’s not a crime to assist (aid and abet) suicide, in the traditional sense. The Model Penal Code, though, has another provision – one that has been adopted by most, if not all, states – which makes it a crime to “purposely aid or solicit another to commit suicide” as long as the person’s conduct “causes such suicide.” Model Penal Code 210.5(2).

I don’t see any basis for arguing that, based on the conduct I outlined in our hypothetical, X “solicited” Doe to commit suicide. That implies X planted the idea in Doe’s head, and he clearly did not.

Could we say that encouraging Doe to kill himself qualifies as “purposely aiding” his suicide? Well, in regular criminal law one can be held liable for a crime if he encourages someone else to commit it. There are cases in which Jones is pointing a gun at Smith and Roe helpfully shouts, “shoot him” . . . and Jones does. Roe can be prosecuted for aiding and abetting (encouraging) the attack on Smith (assault or homicide, depending on the outcome).

So, we can probably say our hypothetical X did, in fact, assist Doe in his suicide by encouraging Doe to kill himself . . . but we come back to the same problem I noted above: How could the prosecution ever prove that X’s comments CAUSED Doe to kill himself?